An upcoming Supreme Court case has caught the attention of lawmakers concerned with curbs on public prayer, including their own.
The case, originating out of the Rochester, N.Y., suburb of Greece, asks if opening sessions of the town board with a prayer violates the Establishment Clause of the First Amendment.
In filing an amicus brief, 34 senators (33 of them Republicans) ponder the question of whether such a prohibition would apply broadly to legislative bodies including their own.
“The work of the Senate is often divisive. But for a few moments each morning, politics and party are set aside. Instead of debate, senators reflect on their duty to represent every constituent, mindful of the Nation’s core values and their need for divine assistance in carrying out their responsibilities,” the senators wrote in the court filing.
The group of senators, led by Florida Republican Marco Rubio and including the chamber’s GOP leaders, as well as Democratic Sen. Mary L. Landrieu, criticize the decision out of the 2nd U.S. Circuit Court of Appeals, which struck down the legality of the prayers in the town of Greece, saying that it effectively constituted an endorsement of Christianity over other religions, even though other faith groups offered prayers.
“In practice, Christian clergy members have delivered nearly all of the prayers relevant to this litigation, and have done so at the town’s invitation,” the appeals court said. “We ascribe no religious animus to the town or its leaders. The town’s desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years. But when one creed dominates others — regardless of a town’s intentions — constitutional concerns come to the fore.”
Rubio and the other senators detail the history of the chaplaincy and the daily prayer, expressing particular concern that the 2nd Circuit decision could put the constitutionality of many legislative prayers in doubt because it says that single circumstance may appear to suggest an affiliation.
“This Court should eliminate the uncertainty and affirm the strong constitutional footing on which legislative prayer stands. In a nation of broad religious diversity, the best means of ensuring that the government does not prefer any particular religious view in the context of legislative prayer is to allow all those who pray to do so in accordance with their own consciences and in the language of their own faiths,” the senators wrote.
A group of 85 House lawmakers, almost entirely Republican, filed a separate amicus brief in the case on Aug. 2, calling for the Supreme Court to change the way that federal courts handle questions related to the Establishment Clause.
That effort — coordinated by the Congressional Prayer Caucus and led by Reps. J. Randy Forbes, R-Va., and Mike McIntyre, D-N.C, and the Republican Study Committee — includes doing away with the so-called endorsement test, which is a Supreme Court test of whether the government’s action amounts to the actual or perceived endorsement of religion.
“The endorsement test is fatally flawed by the subjective discretion that reviewing courts must exercise in determining what a ‘reasonable’ observer would perceive and feel, and on what basis those perceptions and feelings would arise,” the House brief contends.
The House and Senate chaplains are well known to creatures of Capitol Hill and frequent viewers of C-SPAN. They open each legislative session with a prayer from the chamber floor that might touch on the issues of the day, particularly during tumultuous debates such as those to raise the debt ceiling or avert a government shutdown.
The constitutionality of paid chaplains themselves hasn’t been in dispute recently. In a 2011 report, the Congressional Research Service highlighted three prior court cases relevant to the issue of chaplains in legislative bodies. The Supreme Court upheld the chaplain in Nebraska’s unicameral legislature back in 1983. In subsequent federal cases, the House chaplaincy and paid chaplains were upheld, though neither reached the Supreme Court.
A 2008 Northwestern University law review article by Andy G. Olree outlines various writings and comments of James Madison and other Founding Fathers on the issue, noting the original use of legislative chaplains might have had something to do with the Revolutionary War effort.
“The person most responsible for establishing the practice of clergy-directed prayer in the national assemblies was probably Samuel Adams, in 1774, and his motivations seem to have been political — he wanted to encourage support for the rebellion by having a rector of the ‘Church of England’ deliver pro-rebellion sermons to congressional delegates in the form of prayers,” Olree wrote. “Others probably supported the practice during this time period because the hostilities with Britain made them fear for their safety and the success of their cause, and they sought to enlist God’s aid.”
Madison, for his part, came to view the chaplains as unconstitutional, noting they are paid for by tax dollars and elected by a majority — violating equal rights for people of other faiths.
“Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative,” he wrote.
But while they hail from particular faiths, the chaplains are meant to serve the spiritual needs of the entire Congressional community, leading prayer discussions and offering counsel to lawmakers in need.
Chaplains choose the extent to which they become a part of fabric of Congressional life. House Chaplain Patrick J. Conroy is often seen on the floor during amendment debate and votes, as of late relying on crutches or a scooter to assist in his mobility after a leg injury. Senate Chaplain Barry C. Black was at the hospital bedside of Sen. Daniel K. Inouye, D-Hawaii, at the time of his death.
Emma Dumain contributed to this report.